General terms and conditions
1.1 “Esgaia” is Esgaia AB.
1.2 “Agreement” is defined as an agreement between Esgaia and a Customer, entered into either a separate service agreement or acceptance of these general terms and conditions.
1.3 “Confidential Information” is defined as information regarding the Agreement, or any other information which the Parties have learned as a result of the Agreement, whether written or oral and irrespective of form.
1.4 "Customer" is defined as the company, individual, organization or other entity that shall use the Service.
1.5 “Personal Data” is defined as any information relating to an identified or identifiable natural person, an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
1.6 “Service” is defined as the platform Esgaia offers that simplifies active ownership.
1.7 “Test period” is defined as a period a Customer can use all features of the Service free of charge.
2.1 The Service shall firstly be subject to the terms and conditions set out in the separate service agreement between Esgaia and the Customer, secondly to these general terms and conditions and thirdly Swedish law.
2.2 Esgaia grants to the Customer a non-exclusive, non-transferable right to use the Service for its own use in accordance with the Agreement.
2.3 The Service shall be performed according to the terms and conditions set out in the Agreement. In case the Agreement does not address a specific issue at hand, Esgaia shall act in the way that it deems right and appropriate in order to perform the Service.
2.4 Esgaia is entitled to amend these General Terms and Conditions. Such amendments shall enter into force one month after the publication of the amendments on Esgaia´s website, www.esgaia.com.
3. Esgaia´s Undertakings
3.1 Esgaia shall ensure that the Service is available and can be used in accordance with the Agreement. In the event of an error in the Service, Esgaia shall, if possible, remedy the error with the urgency required by the circumstances.
3.2 In the event of interruptions or disruptions in the Service, Esgaia shall notify the Customer.
3.3 Esgaia shall take security measures in a professional manner in order to ensure that the Service does not transmit harmful so-called viruses, trojans, worms or other malicious software to the Customer. Esgaia shall inform the Customer in the event of suspicion of such infiltration.
3.4 Esgaia shall inform the Customer of any intrusion detected or attempted intrusion that may affect the Service.
3.5 Esgaia may engage a subcontractor to fulfil its obligations under the Agreement. Esgaia is responsible for the subcontractor's work as if the work was performed by Esgaia itself.
4. The Customer´s Undertakings
4.1 The Customer shall take security measures in a professional manner in order to ensure that the Customer does not transmit harmful so-called viruses, trojans, worms or other malicious software through the Service. The Customer must inform Esgaia immediately in the event of suspicion of such infiltration and Esgaia may then, or in its own suspicion, suspend the Customer's access to the Service.
4.2 The Customer shall immediately inform Esgaia of any intrusion detected or attempted intrusion that may affect the Service.
4.3 The Customer may not copy software included in the Service or allow anyone to use the Service except the Customer.
4.4 The Customer shall ensure that information provided by Esgaia or information about the Service is handled confidentially in accordance with section 8. The Customer shall immediately notify Esgaia if anyone has gained unauthorized access to such information.
4.5 The Customer shall ensure that Personal Data is not transferred to the Service during the Test period.
4.6 The Customer may not store, distribute or otherwise make available (i) content that infringes or misappropriates the intellectual property or proprietary rights of others or (ii) content that is defamatory, obscene, abusive, invasive of privacy or otherwise objectionable.
4.7 The Customer may not engage in any activities that are illegal, that violate the rights of others, or that may be harmful to others, our operations or reputation, including engaging in a behaviour that appears threatening, stalking, defaming, defrauding, degrading, victimizing or intimidating for anyone for any reason.
4.8 The Customer may not engage in any unlawful, fraudulent, infringing or offensive use.
5. Changes to the service and limited access to the service
5.1 Esgaia may, without prior notice, make changes, including the implementation of updates and new versions, of the Service which do not cause more than minor inconvenience to the Customer. Esgaia also has the right, even if it would lead to inconveniences for the Customer, to make changes, including the implementation of updates and new versions, to the Service to protect the Service and for other security-related purposes.
5.2 Esgaia has the right to suspend or restrict the Customer's access to the Service if:
a) The Customer materially violates the Agreement,
b) In the event of suspicion of infiltration or intrusion as stated in section 3.3, 3.4, 4.1 or 4.2,
c) If anyone has gained unauthorized access to information as stated in section 4.4,
d) If the Customer transfer Personal Data during the Test period.
e) The provision of the Service or the Customer's use of the Service entails a risk of more than insignificant damage to Esgaia,
f) It is reasonable to believe that the Customer's use of the Service or information transmitted via the Service is contrary to applicable law, or
g) Measures are required for technical, maintenance, operational or safety reasons.
5.3 If Esgaia exercises its right in accordance with section 5.2 a), b), c), d), e) or f) the Customer shall be notified of this. If Esgaia exercises its right under section 5.2 g), Esgaia undertakes to notify the Customer before such action.
6. Limitation of liability
6.1 Esgaia is liable for any direct damages incurred by the Customer due to Esgaia´s fault or negligence in its performance of the Service, in accordance with the Agreement and these General Terms and Conditions.
6.2 Esgaia shall under no circumstance be liable to the Customer for any damages due to (i) circumstances for which the Customer is responsible in accordance with the Agreement, (ii) viruses or other security attacks provided, (iii) circumstances outside Esgaia´s area of responsibility for the Service, and (iv) changes and/or limited access to the Service in accordance with section 5.
6.3 Esgaia shall under no circumstance be liable to the Customer for loss of the Customer´s data, loss of profit, revenue, savings or goodwill, the Customer’s obligation to compensate a third party or any other indirect or consequential damage of any kind.
6.4 In the event Esgaia is liable for damages, Esgaia´s liability shall be limited to the amount the Customer has paid in fees for the Service collectively during the last twelve (12) months, but under no circumstance more than fifty thousand (50 000) SEK annually counted from the date of entering into the Agreement.
6.5 A claim for damages from Customer shall be put forward within three (3) months from when the Customer noticed or should have noticed the grounds for the claim, however never later than six (6) months after the damages arose.
7. Personal Data and other information
7.1 The Parties are responsible for complying with the applicable data protection legislation.
7.4 Esgaia has the right to store, analyse and otherwise use the Customer's data for statistical and development purposes if the Customer's data is deidentified / anonymised. When the Customer's data has been deidentified / anonymised, it constitutes Esgaias property.
8.1 The Parties herby undertake, during the term of the Agreement and for three (3) years thereafter, not to disclose Confidential Information to any third party.
8.2 The Parties agree and acknowledge that the Confidential Information may be used solely for the fulfilment of the obligations under the Agreement and not for any other purpose. The receiving Party further agrees to take appropriate measures to prevent its directors, officers, employees, sub-contractors or other intermediaries from using or disclosing Confidential Information to third parties and to use the same degree of care (but not less than reasonable care) to avoid disclosure or use of Confidential Information the Parties uses with respect to its own confidential and/or proprietary information.
8.3 This confidentiality undertaking does not apply to information which
a) at the date of its disclosure is in the public domain or at any time thereafter comes into the public domain, other than by breach of the Agreement; or
b) was in its possession of receiving Party or the Party independently developed before entering the Agreement and which has not been obtained, directly or indirectly, by breach of the Agreement.
8.4 This confidentiality undertaking does not prevent a Party to disclose information that the Party is required to disclose by law or pursuant to any order of court or other competent authority or tribunal or by any applicable stock exchange regulations or the regulations of any other recognised market place. In the event that any Party would be required to make any such disclosure, each Party undertakes to give the other Party immediate notice prior to any such disclosure, in order to make it possible for the other Party to seek an appropriate protective order or other remedy. Each Party also agrees and undertakes to use its best efforts to ensure that any information disclosed under this section, to the extent possible, shall be treated confidentially by anyone receiving such information.
9.1 Upon termination of the Agreement, Esgaia will destroy all material, information and other information belonging to the Customer with the exception of such that Esgaia is obliged to retain according to law, which is saved automatically according to IT back-up processes or which Esgaia reserves the right to store, analyse and otherwise use in accordance with section 7.
9.2 Upon termination of the Agreement and if the Customer requests, Esgaia shall instead return all material, information and other information belonging to Customer with the exception of such that Esgaia is obliged to retain according to law, which is saved automatically according to IT back-up processes or which Esgaia reserves the right to store, analyse and otherwise use in accordance with section 7. The Customer shall compensate Esgaia for its costs in connection to such request.
9.3 Either party shall be entitled to immediately terminate the Agreement after written notice in case of
a) material breach of the Agreement by the other party if no rectification has been made within thirty days from receiving written notice from the damaged party.
b) one of the Parties is declared bankrupt, initiates composition negotiations or company reconstruction, cancels its payments or can otherwise be assumed to be insolvent.
10. Force Majeure
10.1 Esgaia shall be relieved from liability for a failure to perform its obligations under the Agreement during such period, and to the extent that the due performance thereof by Esgaia is prevented by reason of any circumstance beyond the control of Esgaia, which could not reasonably have been foreseen by Esgaia prior to entering into the Agreement, such as war, civil war, fire, flood, interruption in public transport, communications or general energy supply, or other circumstances of similar importance.
10.2 Any event arising due to the ongoing Coronavirus (Covid-19), will and shall be considered as a Force Majeure event.
10.3 The time for performance of the relevant obligations of Esgaia shall be appropriately extended by the period during which the circumstance in accordance with the first section shall have continued, provided, however, that if performance of a contractual obligation is prevented by such a circumstance for a period of three (3) months or more, Esgaia shall be entitled to immediately terminate the Agreement.
11. Intellectual Property Rights
11.1 Esgaia is the sole owner of the Service. Nothing in the Agreement shall be considered as a transfer of ownership of the Service from Esgaia to the Customer.
11.2 Any modifications, enhancements or adaptions of the Service shall be works solely owned by Esgaia.
11.3 The Customer is not granted any rights of any kind in or to the trademarks or trade names of Esgaia.
12.1 Amendments or additions to the Agreement must be made in writing and duly signed by both parties to be valid.
12.2 No Party may assign or otherwise transfer, pledge or otherwise encumber the Agreement or any of its rights or obligations under the Agreement without the prior written consent of the other Party.
13. Governing Law and Jurisdiction
13.1 These General Terms and Conditions shall be governed by Swedish law.
13.2 Any dispute, controversy or claim arising out of or in connection with these General Terms and Conditions or the Agreement, or the breach, termination, or invalidity thereof, shall be finally settled by the courts of Sweden with district court of Stockholm as first instance.